HomeMy WebLinkAbout12/06/2005, C2 - TELECOMMUNICATIONS GROUND LEASE AT LAGUNA LAKE GOLF COURSE 1
council N"fig�-
Dec.6,2005
j agenda Repoin _ _
CITY OF SAN LUIS O B I S P O
FROM; 'Paul LeSage, Director of Parks and Recreation
Prepared by: Ashley Blake, Supervising Administrative Assistant
SUBJECT: TELECOMMUNICATIONS GROUND LEASE AT LAGUNA LAKE GOLF
COURSE'
CAO RECOMMENDATION
Approve a Memorandum of Understanding (MOU) with New Cingular Wireless PCS, LLC
(Cingular) for a telecommunication ground lease at Laguna Lake Golf Course and authorize the
CAO to approve the lease-after all discretionary approvals are achieved.
DISCUSSION
Overview
The proposed MOU (Attachment 1) with Cingular provides that if it receives discretionary
planning approvals from the City and site licensing approval with Sprint PCS Assets, LLC
(Sprint), the City will enter into a lease agreement for the use of Laguna Lake Golf Course that
includes the following key "business" terms:
1. Annual Rent, The starting rent will be $26,000 annually, payable annually in advance. This
will increase annually by 3% or the increase in the consumer price index, which ever is
greater.
2. Subtenants. Subtenants are allowed, however, any subtenants are subject to the same terms
and conditions as the primary tenant, including rent..
3. Term. The initial term will be five years, which may be extended for three additional five-
year terms at Cingular's option. In essence; this is a 20-year agreement; unless Cingular
decides to end it sooner after the first five years. Due to the fluid nature of the market, a
Termination for Convenience(Section 5 of Exhibit 1)clause has been included in the lease.
4. Golf Course Improvements. Cingular will be responsible for designing and installing City
improvements at the Laguna, Lake Golf Course by upgrading the barbeque shelter area and
replacing the existing Pro Shop roof. Both improvements are necessary to achieve a stealth-
like installation.
As described below; by entering into an MOU with Cingular, the City separates its regulatory
versus proprietary role in this lease. The City does not provide any guarantees under the MOU
that Cingular will receive discretionary planning approvals for their project (which includes
making improvements to Laguna Lake Golf Course); however, should they receive these
approvals, then the City agrees to enter into the facility lease provided as Exhibit I to the MOU.
C.-\DOCUME—IVIuuseALOC4LT—N'emp\C4R-/2.6.05-LLOCMOU.DOC `1
f 1
Council Agenda Report—Telecommunications Facility Lease at Laguna Lake Golf Course
Page 2
This "two-step" process ensures that the City retains its full discretion in approving (or not
approving)this project in its regulatory role, while providing Cingular with needed assurances on
the "business terms" of the lease if it is successful in receiving these approvals.
Background
On February 1, 2005, the City entered into a lease agreement with Sprint for a
telecommunications site at the Laguna Lake Golf Course. Approval of this agreement was
preceded by a comprehensive Request for Proposals (RFP) process. Since then, another
telecommunications provider — Cingular — approached the City expressing interest in entering
into a ground lease at this site with the City and a site licensing agreement with Sprint.
The current agreement with Sprint provides for subtenants; as long as they pay the same fees as
the primary lessees. If no facility additions or modifications were required or no added land area
was needed, then a sub-lease between Sprint and another provider would be the best approach.
Normally, there would be no further City involvement needed, other than to be notified of the
lease and collection of twice the rent. However, this is not the case: although Cingular will share
the cellular tower with Sprint, they will need to construct their own equipment facilities, thus
needing land.
The Process:Requests for Proposals
To ensure an equal opportunity to all cellular providers, staff prepared and issued a RFP before
initiating negotiations with a Cingular. The RPF process resulted in one proposal from Cingular
by the closing date of November 17th.
The City's multi-departmental review team in preparing the RFP and reviewing the proposal
included Paul LeSage (Parks and Recreation),Ashley Blake (Parks and Recreation),Todd Bunte
(Laguna Lake Golf Course), Tyler Corey (Community Development), and Bill Statler (Finance
& Information Technology).
Laguna Lake Golf Course Improvements
With Cingular's need to construct an equipment facility, Staff deternfined the building would
need to be in conjunction with an upgrade to the barbeque shelter area and be similar to other
buildings at the golf course in order to ensure a "stealth-like" installation of the wireless
facilities. In accordance with City policy, the existing Pro Shop roof will also be replaced to
match the new barbeque shelter area and Cingular's building to achieve the stealth-like quality.
The amount of the roof replacement will not exceed ten thousand dollars ($10,000) and shall not
included any additional work requiring structural, pest control, mold, or other sub surface
repairs. If Cingular and the golf course supervisor concur; additional improvements could be
submitted for approval at a later time.
C:\DOCUME—/Vlower\LOCALS—Nemp\C4R-12.6.05-LLOC MOU.DOC
_ 1
Council Agenda Report--Telecommunications Facility Lease at Laguna Lake Golf Course
Page$ _
Next Steps
Upon approval of the MOU, Cingular will finalize plans for the project—including Laguna Lake
Golf Course improvements and site licensing agreement with Sprint—and submit them for the
City's regulatory review. Once the review process is complete, staff will submit a CAO Report
for formal approval of the lease agreement, which is likely to occur three to six months from
now. Construction will begin shortly thereafter, and is likely to take three to six months. As
such, it is possible that construction could be underway by Summer 2006 and completed by Fall
2006.
FISCAL IMPACT
Assuming .approval of the MOU and subsequent lease agreement, this will .provide at least
$26,000 in additional revenue annually, increasing by at least 3% per year. With this
assumption,if the lease goes for its full 20-year term, this will mean approximately $520,000 (in
2006 dollars) in additional revenues to the Laguna Lake Golf Course.
ALTERNATIVES
1. Do Not Approve the MOU. This would result in less revenue to the Laguna Lake Golf
Course without.any significant impacts on the community..
2. Amend the Provisions of the MOU. In this case, the Council would need to identify the
specific changes it wants. However, the proposed MOU and lease agreement are consistent
with the general terms and conditions specified in the lease with Sprint.
ATTACHMENTS
1. Memorandum of Understanding with Cingular for a telecommunications ground lease at
Laguna Lake Golf Course.
ON FILE IN THE COUNCIL OFFICE
February 1, 2005 Council Agenda Report regarding lease agreement between_ Sprint and the
City.
C:\DOCUM£-1VdauuNL6US-ATempNCAR-12.6.05-UGCMOUDOC ^
a
_ . . _
AHA I.
MENT
MEMORANDUM OF UNDERSTANDING
This Memorandum of Understanding ("MOU") is made this _day of 2005 by and between
the CITY OF SAN LUIS OBISPO, a municipal corporation and charter city (the "City") and Cingular
Wireless PCS, LLC(the "Contractor").
RECITALS
WHEREAS, Contractor desires to construct a wireless communications facility at Laguna Lake Golf
Course-, and
WHEREAS, the City is willing to enter into a ground lease for a portion of Laguna Lake Golf Course
to the Contractor upon the terms and conditions set forth in Exhibit A, provided that Contractor is able to
obtain an agreement with Sprint PCS Assets, LLC (Sprint) for shared facilities and all discretionary approvals
required by the City in its municipal and regulatory capacity; and
WHEREAS, the MOU is non-binding in nature.
Now,therefore, the parties have prepared the following MOU:
1. PROJECT DESCRIPTION
The "project" consists of a wireless communications facility at the golf course as follows in
accordance with the conceptual site plan provided in Exhibit A:
a. Sublet the existing cellular tree at this site from Sprint for installation of the Contractor's own
antennas. Antennas should consist of a tree type design that will blend into the scenery, have little
impact to the skyline and meet the City's stealth requirements.
b. Build facilities as needed for Contractor's equipment.
c. Reconstruct the barbeque shelter area in conjunction with construction of the Contractor's
facilities.
d. Install a new Pro Shop roof to accomplish the stealthiness of the barbeque shelter area to the golf
course. The amount will not exceed ten thousand dollars ($10,000) and shall not included any
additional work requiring structural,pest control, mold,or other sub surface repairs.
e. Make other minor improvements as may be necessary to successfully complete this project.
2. APPROVAL OF IMPROVEMENTS
In its capacity as the owner of Laguna Lake Golf Course, and separate from its capacity as regulator,
the City shall have rights of specific approval and review of all designs and plans, initially at the
concept and schematic plan level,. and subsequently at the final plans as set forth herein. Upon
execution of the MOU the City shall review and approve the preliminary design. After approval of the
preliminary design, Contractor shall submit to the City the final plans for the Project. Within 30 days
of such submission, the City shall exercise its final right of review and approval of such plans. These
rights shall be supplemental to and not concurrent with its rights of inspection in connection with
building permit,fire and other regulatory functions.
G:1Su&,Kbe,1ASrrtda Prrp FdMOU-Cmgida,d r`
ca -4
MACHMENT 1
3. CITY RIGHTS OF APPROVAL AND INSPECTION
During the construction process, the City shall have the right: as an owner, to review all change orders;
to require change orders which the City reasonably deems necessary only in order to ensure
consistency or equivalency with the approved plans and specifications, and to inspect all pans of
construction at any time.. These rights, like the rights of plan review and approval, are supplementary
to and separate from the regulatory functions of the City.
4. CONTINGENCIES TO LEASE SIGNING
]n its capacity as landowner, the City is under no obligation to enter into any lease until the
development review process is concluded and all discretionary approvals are obtained and such other
requirements as may pertain to final entitlement and approval of this project are fulfilled..
5. PERFORMANCE BOND FOR PUBLIC IMPROVEMENTS
The Contractor shall provide at no cost to the City a surety bond to guarantee completion of the
improvements that meet City standards for such bonds.
6. CONTINGENCY FUNDS FOR UNANTICIPATED WORK
a. Prior to start of project construction, City will collect from Contractor and hold a sum of$5,000
for any unanticipated work related to the project.
b. Contractor will receive an itemized statement of expenditures spent from this fund, within 90 days
of completion of project. Funds not expended will be returned. to the contractor, exclusive of
claims pending against the City. '
7. RESPONSIBILITIES OF THE PARTIES
a. Contractor. It shall be the responsibility of Contractor to diligently pursue all aspects of the
application for the development of the project, including all environmental processing, all zoning
processing, any supporting technical studies, and any other supporting studies as may be
necessary. All costs associated with the processing of entitlements and City approvals and the
production of studies,planning and design for the project shall be paid for by Contractor.
b. City. The City, in.its role as landowner, shall cooperate with and furnish information to
Contractor on the property. With regard to zoning approvals, the City's responsibility shall be
limited to providing that level of interaction, timely response and review as provided for in
regulations and ordinances of the City of San Luis Obispo.
8. OTHER MUNICIPAL PROCESSING
a. The Parties understand and agree that those approvals required of the City acting in its
governmental or regulatory capacity are separate and distinct from those.approvals required by the
City under this MOU. Notwithstanding anything.to the contrary in this MOU, nothing herein shall
be interpreted to mean that the City is any way waiving, limiting or weakening any regulatory or
police power the City may have in any of its governmental capacities. It is intended that
Contractor shall be obligated to fulfill such requirements as may be imposed by the City or any
other governmental agency or authority having or exercising any jurisdiction over the project or
over any construction to he undertaken by Contractor in, on or about said project.
GAStaffWieeMgenda Prep File.A OU-CinRudnedar
Ca -S;-
ATTACHMENT I
b. Refusal or failure oy Ithe City in its governmental or regulatory capacity to take a legislative action,
issue any permit, license or any other action or approval sought by Contractor for construction of
improvements on,or development of, the project shall not constitute a breach of this MOU.
9. NON-BINDING NATURE OF THE AGREEMENT
a. Without obligating either of the parties, this MOU summarizes what Contractor and the City
perceive to be the major deal points with respect to the project. No binding obligation is created
by this MOU or can be created other than by execution of:a Telecommunications Facilities Lease
in the form attached hereto as Exhibit A. Notwithstanding the foregoing, the parties agree that if a
Telecommunications Facilities Lease is entered into between the parties, it shall substantially
include the terms of this MOU.
b. This MOO is an outline for discussion purposes only, is not intended to be contractual or binding
for any purpose and is not an offer or representation by either party. It is designed to reflect the
ideas being formulated, to provide a framework to attempt to resolve issues and concerns that have
been raised, as well as fortheresolution of issues and. concerns which may arise. In some
instances, a tentative but not binding, agreement on.a matter is referred to, and in other instances,
material agreements are yet to be defined and specified . The fact that any particular component or
issue is not addressed in this MOU does not mean that it cannot be the subject of future
discussions and negotiations, and the fact that a component is addressed does not mean that it
cannot be rejected or modified by either party. Contractor further acknowledges and agrees that
the officers and employees of the City,do not.have authority to bind the City, and the final form of
any proposed lease to be negotiated may have to contain matters not contemplated by this MOU.
The parties acknowledge that neither party will be contractually bound to any agreement not to
any element of the proposed development until the final execution of a mutually acceptable lease
approved and executed by authorized representatives. Alternatively, either of the parties may
determine that further negotiations will not be fruitful and then terminate this MOU or allow this
MOU to lapse without further liability to the other.
10. ACCEPTANCE AND ACKNOWLEDGEMENT
CITY OF SAN LUIS OBISPO CONTRACTOR
By: __. By:
Mayor David F. Romero
ATTEST:
Audrey Hooper,City Clerk
APPROVED AS TO FORM:
oriat P. Lowell, City Attorney
Exhibit A: Form of Telecommunications Facility Lease at Laguna Lake Golf Course.
�� rY
GAStuffKisrMgendo Prep FilesWOU-Cinguhtndoe
ATTAGHMENT
TELECOMMUNICA fIONS FACILITY LEASE AT LAGUNA-LAKE GOLF COURSE
r -
This Lease is made and entered into this _ day of 2005, by and between the
CITY OF SAN LUIS OBISPO, a municipal corporation and charter city (hereinafter referred to as "Lessor").
and Cingular Wireless PCS, LLC(hereinafter referred to as "Lessee").
RECITALS
This Lease is made and entered into with respect to the following facts:
A. Lessor is the owner of the property described in Exhibit A, located at 11175 Los Osos Valley
Road,San Luis Obispo,California,commonly known as Laguna Lake Golf Course.
B. Lessee has requested permission to construct a wireless communications building to be located
at Laguna Lake Golf Course and Lessee is willing to construct.and dedicate certain public improvements to
Lessor. Lessor is willing to lease a portion of Laguna Lake Golf Course to Lessee upon the terms and
conditions hereinafter set forth.
C. Lessee warrants that the facility will not interfere with the City's operation of the Laguna Lake
Golf Course or the public's use of the course.
D. This Lease is conditioned upon Lessee obtaining a site license agreement with Sprint PCS
Assets, LLC (Sprint) for any shared facilities on the Premisesand all governmental permits and approvals
enabling Lessee to construct and operate wireless communications facilities on the Premises,as defined below.
E. Lessor and Lessee have heretofore entered into a Memorandum of Understanding dated
—_- concerning Laguna.Lake Golf Course.
NOW THEREFORE,the parties hereto agree as follows:
1. Premises. Lessor is the owner of a parcel of land located in the City of San Luis Obispo,
County of San Luis Obispo, State of California, located at 11175 Los Osos Valley Road, commonly known as.
Laguna Lake Golf Course. The land is more particularly described in Exhibit A, attached hereto. Lessor
hereby agrees to lease to Lessee and Lessee hereby agrees to lease from Lessor approximately 400 square feet
of the land and all access and utility easements described in Exhibit B attached hereto, and by this reference
made a part hereof (hereinafter referred to as the "Premises"). This Lease is subject to the terms, covenants
G:\Sra/f arMgenda Prep Flle.MlOU-Cingulandia:
GHMENT:i
and conditions hereinafter set „ih and Lessee covenants, as a material part of the consideration forthis Lease,
to keep and perform each and every term, covenant and condition of said Lease.
During the term of this Lease, Lessor also grants to Lessee an irrevocable, nonexclusive right of
ingress and egress, seven days a week, twenty-four (24) hours a-day, and the right to install and maintain
underground utility wires and cables and conduits and pipes (1)from the Premises to the nearest public right-
of-way, and (2)from the radio equipment to the antennas.
2 Improvements.
Lessee shall design and perform, construct or erect or cause to be constructed or erected at its sole cost
the following minor improvements ("Improvements")as shown on Exhibit "B:"
A. Lessor's Facilities. Lessee shall make the following improvements to City facilities.
1) Reconstruct the barbeque shelter area in conjunction with the construction of
Contractor's equipment facilities in accordance with the City's design standards.
2) Install a new Pro Shop roof to maintain stealthiness of the barbeque shelter
area to the golf course in accordance with the City's design standards. The amount will not exceed ten
thousand dollars ($10,000) and shall not included any additional work requiring structural, pest control, mold,.
or other sub surface repairs.
3) Make other minor improvements as may be necessary to successfully
complete this project.
B.. Lessee's Facilities. Lessee shall also erect on the Premises its own communications
facilities, which include, but are not limited to, equipment shelters, radio frequency transmitting and receiving
equipment, batteries, utility lines, transmission lines, radio.frequency transmitting and receiving antennas; and
supporting structures and irnprovernents (hereinafter "Lessee's Facilities") as shown on Exhibit `B''. The
plans for the Improvements and Lessee's Facilities (landscaping, irrigation, fencing, building, concrete, and all
related improvements)as shown on Exhibit `B" shall have'the prior written approval of Lessor in its municipal
capacity (not in its capacity as landlord). Lessee shall dedicate the Improvements to Lessor upon completion
thereof.
Ca -�
G:WnflkKn,Mgendn Prep Pi AMOU-Cingulnr.dn'
C. The tmprovements shall be performed by Lessee under the authority, direction,
supervision, and approval of Lessor. Lessee shall submit construction plans to the City's Director of Parks and
Recreation for approval prior to submitting the application and plans to the Community Development
Department for building,permit processing and approval.
D. Lessee acknowledges and understands that the improvement is a public construction
project subject to the competitive bidding requirement contained in California Public Contracts Code Section
20162 and the prevailing wage requirement contained in California Labor Code Section 1771.
E. Lessee shall provide Lessor with evidence that it has entered into an agreement with
Sprint for any shared facilities in the Premises, which is attached hereto as"Exhibit C."
3. Term. The initial term of this Lease shall be for five (5) years ("Initial Term") commencing
with the issuance of.a City building permit to construct the Lessee's Facilities and Improvements. This Lease.
shall automatically be renewed on the same terms and conditions, for three (3) additional terms (each a
"Renewal Term'') of five (5) years each, unless Lessee notifies Lessor of its intention not to renew, at least
sixty (60) days prior to the expiration of the Initial Term or any Renewal Term.
4. Rent. Rent shall be paid annually in:advance as follows:
A. Lessee shall pay to Lessor as annual rent on or before the Commencement Date of the
Lease the sum of Twenty-Six Thousand Dollars ($26,000.00) ("Annual Rent") without deduction, setoff,
notice or demand.
B. Annually thereafter, Lessee shall pay to Lessor as Annual Rent for that lease year
without deduction, setoff, notice, or demand the previous year's Annual Rent multiplied by the CPI Adjuster,.
or multiplied by three percent(3%G); whichever is greater.
C: The.CPI Adjuster means a percent, which is calculated by dividing the United States
Consumer Price Index (All Urban Consumers) published by the Bureau of Labor Statistics of the U.S.
Department of Labor three (3) months priorto adjustment date by the base Index number published three
(3) months prior to the Commencement Date, or previous adjustment date, as applicable. If the Index is
changed so that the base Index number differs from that in effect when the first extended term commenced, the
Index shall be converted in accordance with the conversion factor published by the Bureau of Labor Statistics.
GAS ab1X,,eAAgrnda.Prep Fd,,VAOO-O.g.l.,dnc
If the Index is discontinued or revised during an extended term, such other government index or computation
With which it is replaced shall be used in order to obtain substantially the same result as would be obtained if
the Index had not been discontinued or revised.
D. If Lessee fails to pay the Annual Rent within thirty (30) days after such rent is due,
Lessee shall pay a late fee of one and one half percent(1.5%) per month. This late charge does not establish a
grace period. Lessor and Lessee agree that the charge is presumed to be the damages sustained by Lessor for
Lessee's late payment of rent and that it is impracticable or difficult to fix the actual damages.
5. Use.
A. Lessee shall use the Premises for the sole purpose of constructing, maintaining,
securing and operating wireless communications facilities including the construction of equipment buildings
and installation of required antennas and related communications equipment upon the existing tree as listed,
depicted; and described in the "Lessee's Facilities" which is attached hereto as Exhibit `B" and hereby
incorporated by reference. Any other use of the Premises or use of equipment not described in Exhibit `B;" is
not authorized and shall constitute a breach of this Lease.
B. Lessee must obtain all discretionary permits and approvals required by Lessor in its
municipal capacity. Installation of a new wireless telecommunication or modification of an existing
installation shall require use permit approval and architectural review. The applicant shall submit application
materials and fees as required by the Community Development Department. Wireless communications
facilities shall not be constructed, installed or modified prior to obtaining a City building permit. It.shall be the
responsibility of the owner/operator of a telecommunications facility to provide the City with a notice of intent
to modify site equipment in any way. Lessor shall reasonably cooperate (at no expense to Lessor) with Lessee
in connection with Lessee's efforts to obtain all such permits and approvals; provided, however, Lessor shall
not lie obligated to apply for any permits or approvals with Lessee. Construction of Lessee's Facilities and the
Park Improvements shall be at Lessee's sole expense. Further, Lessee shall maintain the Lessee's Facilities
free from hazards or risk to the public health,safety and welfare.
C. At all times throughout the term of this Lease,Lessee's use of the Premises shall be in
conformance with, and subject to all conditions of, any and all discretionary permits in effect.
�a.to
G:UtaJfKiAeMgrndu Prrp Fde.oMOU-Cingulandar
ATrAGHIMEN
D. Lessor agrees that Lessee's ability to use the Premises is dependent upon Lessee's
obtaining all necessary certificates, permits and/or other approvals which may be required from Lessor in its
municipal or regulatory capacity and from any federal, state or other local authority. Lessor agrees to
cooperate with Lessee as to Lessee's obtaining such certificates, permits or other approvals. In the event
Lessee is unable to obtain any necessary certificate, permit or other approval in order to operate or construct
the Park Improvements or Lessee's Facilities, Lessee may terminate this Lease as provided herein, upon thirty
(30)days prior written notice.
E. Facility cannot be operational until final acceptance by the Lessor,
6. Interference.
A. Lessee warrants that its construction, repair and operation of Lessee's Facilities will
not interfere with.Lessor's fire, police, public works and other public safety or city department communication
broadcasts or frequencies- All operations by Lessee shall be incompliance with all Federal Communications
Commission requirements and all applicable laws.
B. If Lessor suspects or has reason to believe that Lessee's use of the Premises creates
radio or television interference for nearby residents or interference with Lessor's communication systems, and
if Lessee (i)does not proceed diligently to eliminate such interference, or(ii)provide evidence that Lessee and
the sublease tenant are not the source of such interference, within ten (10) business days after notice from
Lessor to do so,Lessor may immediately terminate this Lease by giving notice to Lessee.
C. Lessee "shall provide Lessor with a contact person who shall be available twenty-four
(24) hours a day to receive reports of any interference with Lessor's frequencies. In the event that there is
interference with Lessor's public-safety frequencies,Lessee shall immediately cease the operations creating the
interference when directed to do so by the.City's Information Technology Manager until such time that the
interference can be eliminated to her or his satisfaction. Lessee's failure to immediately cease such operations
shall be considered a material breach of this Lease notwithstanding Paragraph 6.13. above.
T Radio Frequency Emission Exposure.
A. No wireless telecommunication facility shall be sited or operated in such a manner
that it violates any condition.of its Federal Communication Commission's (FCC) permit or license. To that
^ l1
• - GASrabWi.mMgrnda Arp Pilrs MOU-Cingular.Jor
. TTS HENT`I
end no facility or combination-of facilities shall produce at any time power densities in any inhabited area that
exceed the FCC's Maximum Permissible Exposure (MPE) limits for electric and magnetic field strength and
power density for transmitters or any more restrictive legally enforceable and applicable standard subsequently
adopted or promulgated by the city,county, the state of California, or the federal government. For purposes of
radio frequency emissions, compliance with FCC exposure limitations shall constitute a conclusive
presumption that there is no hazard or risk to the public health, safety or welfare.
B. Initial compliance with this requirement shall be demonstrated for any facility within
three hundred (300) feet of residential uses or sensitive receptors such as-schools, churches, Hospitals, etc. and
all broadcast radio and television facilities; regardless of adjacent land uses, through submission, at the time of
application for the necessary permit or entitlement, calculations specifying MPE levels in the inhabited area
where the levels produced are projected to be highest. If.these calculated levels exceed eighty percent (80%)
of the MPE limits, the applicant shall hire a qualified electrical engineer licensed by the State of California to
measure exposure levels at the location after the facility is in operation. A report of these measurements and
the engineer's findings with respect to compliance with MPE limits shall be submitted to the Community
Development Director. Lessee".s Facilities shall not commence normal operations until it complies with,.or has
been modified to comply with this standard. Proof of compliance shall be a certification provided by the
engineer who prepared the original report. In order to assure the objectivity of the analysis, the City may
require, at the applicant's expense, independent verification of the results of the analysis.
C. Every wireless telecommunication facility within three hundred (300) feet of an
inhabited area and all broadcast radio and television facilities shall demonstrate continued compliance with its
FCC permit or license and MPE limits. Every five (5) years a report listing each transmitter and antenna
present at the facility .and the effective radiated power radiated. shall be submitted to the Community
Development Director. If either the equipment or effective radiated power has increased, calculations
specifying exposure levels in the inhabited areas where the levels are projected to be highest shall be prepared.
Calculations shall also be prepared every time the.adopted MPE limits change. If calculated levels in either of
these cases exceed eighty (80%) of the MPE limits, the operator of the facility shall Hire a qualified electrical
engineer licensed by the State of California to measure the actual exposure levels produced. A report of these
GASt.b%K ,Mgrndu Prep Fil,,WOU-Cmgulm.dur
calculations, required measurements, if any, and the engineer's findings with respect to compliance with the
current MPE limits shall be submitted to the Community Development Director within five (5) years of facility
approval and every five (5) years thereafter. In the case of a change in the limits, the required report shall be
submitted within ninety(90)days of the date the change becomes effective.
D. Failure to supply the required reports or to remain in continued compliance with any
FCC license,permit or MPE limits shall be considered a material breach of this Lease..
8. Visual Mitigation. Lessee will use a variety of visual mitigation strategies for all of its
facilities, as determined necessary by the Community Development Director and as required through the
Architectural Review process, with the goal of achieving a 100% stealth installation. Facilities shall be
creatively designed to minimize the visual impact to the greatest extent possible by means of placement,
screening, and camouflage. The applicant shall use the smallest and least visible antennas possible to
accomplish the coverage objectives. Each installation shall be designed to blend into its surroundings so that
the antenna(s) and equipment are not apparent to the casual observer. The structure in which antennas are
located shall not exceed fourteen (14) inches in diameter. Ground mounted support equipment shall be
undergrounded or otherwise screened from view so as to be effectively unnoticeable. All connections and
conduits between the base of the antenna(s) and support equipment shall be undergrounded. Electrical and.
telephone service to the support equipment shall be undergrounded.
9. Noise. Each facility shall be operated in a manner that minimizes any possible disruption
caused by noise to people working and living in the vicinity. At no time shall equipment noise from any
source exceed an exterior noise level of 55 dB at the property line or within 20 feet of such equipment,
whichever is less. This requirement may be modified at the discretion of the Community Development
Director where typical ambient noise levels exceed 55 dB.. Outdoor noise producing construction.activities
shall take place only on weekdays between the hours of 8:00 am and 5:00 pm unless a different schedule is
approved as part of the use permit. Any facility utilizing temporary backup generators shall be required to
meet or exceed Air Pollution Control District Standards. All generators shall be fitted with approved air
pollution control devices. Projects that propose to include backup generators shall require review and approval
from the Air Pollution Control District. Project plans shall indicate location, size, horsepower and type of fuel
Ca � 13
GAS,.b1XixeMgemhl Prep FileAMOU-Cingulaedur
�,TTAGH EMIT
used for any proposedgenerator. Generators shall only be operated during power outages and for testing and
maintenance purposes. Testing and maintenance shall only take place on weekdays between the hours of
10:00 am and noon.
10. Nondiscrimination. Subject to applicable laws, rules, and regulations, Lessee shall not
discriminate against any person or group on the basis of age, sex, sexual orientation; AIDS, AIDS related
condition,marital status,race,religion,creed, ancestry, national origin, disability, or handicap.
11. Subsurface Restrictions. The parties agree that this Lease covers only the surface of the
Premises and only so much of the subsurface as is reasonably necessary for Lessee's use of the Premises as
permitted in this Lease (including, without limitation, (i)the foundation for Lessee's monopole antenna
structure and building, and (ii)cables, conduits and pipes within the Premises to connect Lessee's
communications equipment within such building to the antennas to be constructed and maintained by Lessee
within the Premises).
12. Liens. Lessee shall keep the premises free of mechanic's; material supplier's or other liens for
any work done, labor performed or materials furnished therein by or for Lessee, and Lessee shall defend,
indemnify and hold Lessor, its officials, employees and agents harmless from and against all claims, liens,
demands, causes of action, liability, loss, cost and expense (including reasonable attorney's fees) of whatever
kind for any such work done, labor performed or materials furnished.
13. No Utilities. Lessor shall not provide any utilities to the Premises. Lessee shall be permitted
to install utility lines, meters for electricity, and shall arrange and pay for the installation and use of all utilities
of whatsoever kind to the Premises.
14. Maintenance.
A. Lessee shall, at Lessee's sole cost and to the satisfaction of Lessor, maintain Lessee's
Facilities and all related improvements (except the Improvements as shown on Exhibit`B") in good condition,
free from rodents, weeds, noxious plants and wild growth, in substantial repair; in a safe and sanitary
condition, and in compliance with all applicable laws and regulations and shall promptly repair any damage
caused by Lessee. If Lessee fails to maintain the Lessee's Facilities as required herein, Lessor may notify
Lessee of said failure. If Lessee fails to correct the situation within thirty (30) days after notice or such longer
GA51afful'i�rAASenda Prep File MOU-Cingulandar
1 ENT
period as may be established uy Lessor, Lessor may make the necessary correction and the cost thereof,
including but not limited to the cost of administration, and labor, materials, equipment, shall be paid by Lessee
within thirty (30) days after receipt of a statement of said cost from Lessor. If said statement is not timely
paid, Lessor may, at its option, choose any remedy available herein or by law, including the termination of this
Lease. Lessee hereby waives to the extent permitted by law any right to make repairs at the expense of Lessor
or to vacate the Premises in lieu thereof as may be provided by law.
B. Lessor shall have no duty to maintain or repair Lessee's Facilities or any of Lessee's
improvements.
15. Taxes. Lessee acknowledges that this Lease may create a possessory interest subject to
property taxation and that Lessee may be liable for payment of taxes levied on such interest. Lessee shall
promptly pay, prior to delinquency, all taxes, assessments and other governmental fees that may be lawfully
levied against the Premises and any improvements or personal property located on the Premises and on any
possessory interest created by this Lease,and provide proof of payment to Lessor on demand..
16. Insurance. Concurrent with the execution of this Lease;Lessee shall procure and maintain, at
its cost, during: the initial and any extended or Renewal Term of this Lease from an insurer admitted in
California or having a minimum rating.of or equivalent to A: VII in Best's Insurance Guide:
A. Comprehensive General Liability insurance with a combined single limit of at least
Five Million Dollars ($5,000,000) for each occurrence. Lessor, its officials, employees and agents shall be
covered as additional insureds with respect to liability arising from activities performed by or on behalf of
Lessee: Said insurance shall be primary insurance with respect to Lessor and shall contain a cross liability
endorsement..
B. "All Risk" property insurance in an amount sufficient to cover the full replacement
value of Lessee's personal property, improvements and equipment on the Premises.
C. Upon the execution of this Lease, Lessee shall deliver to Lessor certificates of
insurance with original endorsements evidencing the coverage required by this Lease. The certificates and
endorsements shall be signed by a person authorized by the insurer to bind coverage on its behalf. .
GAS1affWb,Mgrada P,,p Fil,AMOU-0nR,da,dor
Fa HNDW
D. Said insurance shall contain an endorsement requiring thirty (30) days prior written
notice from insurer to Lessor before cancellation or change of coverage.
E. Said insurance may provide for such deductibles or self-insured retention as may be
acceptable to the City's Risk Manager or designee. In the event such insurance does provide for deductibles or
self-insured retention, Lessee agrees that it will fully protect.Lessor its officials and employees in the same
manner as these interests would have been protected had a policy of commercial insurance been in effect.
With respect to damage to property, Lessor and Lessee hereby waive all rights of subrogation, one against the
other,but only to the extent that collectible commercial insurance is available for said damage.
F. The procuring of insurance shall not be construed as a limitation on Lessor's liability
or as full performance on Lessee's part of the indemnification provision of this Lease: Lessee understands and
agrees that, notwithstanding any insurance, Lessee's obligation to defend and indemnify Lessor, its officials
and employees hereunder is for the full amount of any damage, loss cost or expense.
G. Any modification or waiver of these insurance requirements shall only be made with
the written approval of the Lessor's Risk.Manager or designee.
17. Removal.of Improvements. On the expiration or sooner termination of this Lease, Lessee at
Lessee's sole cost shall have the right to remove Lessee's Facilities(with the exception of the Improvements as
shown on Exhibit B) erected on the Premises by Lessee by giving notice of its intention to do so to Lessor and
by removing same within forty-five (45)days after expiration or sooner termination of this Lease. Lessor may
treat any such buildings or improvements as abandoned if Lessee fails to timely remove them and, in such
event, (a)Lessor shall be deemed owner of them without accounting to Lessee, or (b)Lessor may cause their
removal at Lessee's cost, with the exception of the underground conduits which may be abandoned in place by
Lessee.
is. Relocation. Lessee agrees that nothing contained in this Lease shall create any right in Lessee
for any relocation payment or assistance pursuant to the provisions of Title 1, Division 7, Chapter 16 of the
California Government Code from Lessor on account of the expiration or sooner termination of this Lease.
G:1SmJfKi.,,Mg,nda Prrp Pilr.ANOU-Cing.iucdlx
19. Notice. Any notice required hereunder shall be in writing and personally delivered or
deposited in the U.S. Postal Service, registered or certified, return receipt. postage prepaid, to the address of
the respective parties set forth below:
LESSOR: LESSEE:
City Clerk New Cingular Wireless PCS,LLC
City of San Luis Obispo 12900 Park Plaza Drive
990 Palm Street Cerritos, CA 90703
San Luis Obispo,CA 93401
Notice shall be deemed effective on the date shown on the return receipt or on the date personal delivery is
made, whichever first occurs. If delivery is refused, the date of deposit of the copy in the mail shall be deemed
the date of notice. Change of address shall be given as provided herein,for notices:
20. Hazardous Materials and Waste:
A. Lessee shall comply with all applicable laws regarding the use, storage and disposal of
hazardous materials on the Premises. Lessee shall comply with California Health and Safety Code Section
25359.7 or its successor regarding notice to Lessor on discovery by Lessee of the presence or suspected
presence of any hazardous substance on the Premises.
B. Lessee shall not bring any hazardous materials onto the Premises except for those
contained in its back-up power batteries and common materials used in telecommunications operations, e.g.,
cleaning solvents. Lessee shall treat all hazardous materials brought onto the Pretnises by it in accordance
with all federal, state and local laws and regulations..
C. Lessee shall specify any proposed generator usage and its proposed location.
D: Lessor represents that the Premises have not been used for the generation, storage;
treatment or disposal of hazardous materials, hazardous substances or hazardous wastes. In addition, Lessor
represents that no hazardous materials, hazardous substances, or hazardous wastes, pollutants, asbestos,
polychlorinated biphenyls (PCBs); petroleum or other fuels (including crude oil, or any fraction or derivative
thereof), or underground storage tanks are located on or near the Premises..
21: Indemnity: Lessee shall defend, protect, indemnify and hold harmless.Lessor, its officials,
employees and agents from all claims, demands, damages, causes of action, losses, liability, costs or expenses,
(2a '-)l
G:kSmj/V:isddXenda Prep Fde3WOU-Cingu(undar
A ACI
including reasonable attorney's fees, of any kind or nature whatsoever (except those resulting from Lessor's
sole negligence or willful misconduct) which Lessor, its officials; employees and agents may incur for injury
to or death of persons or damage to or loss of property occurring in, on or about the Premises arising from the
condition of the Premises (other than conditions existing prior to Lessee's occupancy of the Premises), the
alleged acts or omissions of Lessee, any parent, subsidiary, affiliate or partnership in which any such entity
participates, Lessee's officers, employees or agents, the occupancy, use or misuse of the Premises by Lessee,
any parent, subsidiary, .affiliate or partnership in which any such entity participates, Lessee's officers,
employees or agents, or any breach of this Lease.
Lessor shall protect, indemnify and save harmless Lessee, and its officers, agents and employees, from
and against all claims, demands and causes of action by Lessor's employees or third parties on account of
personal injuries or death or on account of property damages arising out of the use of the Premises by Lessor
hereunder and resulting from the sole negligence or willful misconduct of Lessor or its officers, agents and
employees.
22. Assignment and.Subletting. Except for an assignment, sublease or transfer to Lessee's
affiliate, parent, subsidiary, member or partner, or as a result of a merger or sale of substantially all of Lessee's
assets ("Permitted Assignment"), Lessee shall not assign or transfer this Lease or any interest herein, without
the prior written consent of Lessor which shall,not be unreasonably withheld, provided, however, that Lessee
shall notify Lessor in writing of a Permitted Assignment within thirty (30) days. To obtain Lessor's consent to
a proposed assignment or transfer (hereinafter collectively referred to as "transfer")i Les-see shall meet the
following requirements and Lessee's failure to meet any requirement.shall allow Lessor to withhold consent:
A. Lessee shall notify Lessor at least sixty(60)days prior to the date when Lessee desires
the transfer to take effect("Transfer Date") which notice shall contain the name, address and telephone number
of the proposed transferee; the nature of the proposed transferee's business and details of its business
experience:
B. Lessor shall notify Lessee at least thirty days (30) days prior to the Transfer Date
whether Lessor approves or disapproves of the proposed transfer.
GASmfJ,AisnWgemda Peep R1,M1OU-Cmg.Za,dnc
TTs . � `
C. Any approved transferee shall assume and be,deerned to have assumed this Lease and
shall be jointly and severally liable with Lessee for the payment of rent and performance of the terms,
covenants, and conditions of this Lease. No approved transfer shall be binding on Lessor until such transferee
shall deliver to Lessor a counterpart of the transfer agreement with contains a covenant of assumption by
transferee but the failure or refusal to execute or deliver such instrument shall not release transferee from its
liability as stated herein.
D. The consent of Lessor to any transfer shall not relieve Lessee of the obligation to
obtain such consent to any further transfer. Further;neither this Lease nor any interest herein shall be subject
to transfer by attachment, execution, proceedings in insolvency or bankruptcy (either voluntary or
involuntary), or receivership. 1n the event of the transfer without the prior written consent of Lessor, such
transfer shall be voidable at Lessor's election and, if voided by Lessor, shall convey no interest. Any transfer
without Lessor's consent shall constitute a default of this Lease.
E. To obtain Lessor's consent to a sublease, Lessee shall meet the following
requirements and Lessee's failure to meet any requirement shall allow Lessor to withhold consent:
1) The Lessee must pay to Lessor the same amount of Annual Rent on the
sublease tenant's behalf as the Lessee ("Additional Annual Rent"). For example; if there were two sublease
tenants by the beginning of the third year of this Agreement, the total rent due from the Lessee would be
$52,750.02: the Annual Rent for the Lessee ($27;583.40, which is the first year's rent of$26,000 increased by
3% for two years) and the Additional Annual Rent for the two sublease tenants ($27,583.40 each). While the
Lessee may require the sublease tenant to pay thus amount as pan of their sublease agreement with the Lessee,
payment of the Additional Annual Rent is the sole responsibility of the Lessee; and is subject to the same
terms,conditions and remedies as the Annual Rent.
2) Lessee shall notify Lessor at least sixty (60) days prior to the date when
Lessee desires the sublease the transfer to take effect ("Sublease Date"), which.notice shall contain the name,
address and telephone number of the proposed sublease tenant; the nature of the proposed sublease tenant's
business and details of its business experience. The first year of Additional Annual Rent shall be paid prior to
Ca lei
G:\gm8lKiarrlAgrndn Prrp Filr>4NOU.Cingufui.d..
ATAGHMET
the Sublease date and will be prorated to the Lessee's Annual Rent payment due date; and shall be due
annually thereafter with the Annual Rent.
3) Lessor and Lessee agree (by way of example and without limitation) that it
shall be reasonable for Lessor to withhold its consent if any of the following exist or may exist: the proposed
transferee's use of the Premises conflicts with or is.inconsistent with the use of the Premises stated herein; the
Lessee is in default under this Lease at the time the request for sublease is made and has not cured such
default; if the same can be cured, prior to ten(10) business days prior to the Sublease Date.
4) The sublease tenant is subject the same terms and conditions of this
Agreement as the Lessee.
5) Lessor shall notify Lessee at least fifteen (15) days prior to the sublease date
whether Lessor approves or disapproves of the proposed.sublease.
23. No Permits.. Lessee shall not grant any rights-of-way, easements, franchises or permits in, on
or across the Premises..
24. Encumbrances. Lessee shall take the Premises subject to any and all existing easements and
other encumbrances.
25.. Reservations. Lessor reserves the right to grant franchises, easements; rights-of-way or
permits for pipeline purposes which will not interfere with Lessee's use of thePremises.
26. Default. The occurrence of any of the following acts shall constitutea default by Lessee:
A. Failure to pay Annual Rent or Additional Annual Rent when due where such failure
shall continue for a period of ten(10)days after Lessee's receipt of written notice from Lessor-.
B. Failure to perform any of the terms; covenants or conditions of this Lease if said
failure is not cured within thirty (30) days after Lessee'.s receipt of written notice from Lessor of said failure.
If the default cannot reasonably be cured in thirty (30) days after receipt of such notice; Lessee shall not be in
default if Lessee begins to cure within the thirty-day period and diligently proceeds to cure to completion.
Lessor's notice shall describe the default and shall demand that Lessor perform or quit the Premises. No such
notice shall be deemed a forfeiture or termination of the Lease unless Lessor so elects in the notice.
lam'
G:`,5wJ/1Ri.u•Mgenda Perp FileAMOU-Cingulacdx
AT TCHMENTI
C. Any1 attempted assignment, transfer or sublease except as permitted in Section 22
hereof:
D. Failure to maintain all necessary permits and business licenses required by the City in
its municipal or regulatory capacity or failure to pay any fees for permits or licenses to the City when due;
E. Failure to report or pay to the City all applicable sales taxes, transient occupancy
taxes,business taxes,utility taxes or other excise taxes, when due.
Subject to the terms of this Section, if Lessee does not comply with each term, covenant and
condition of this Lease or if a default occurs, then Lessor may terminate this Lease and Lessor may then enter
the Premises and take possession thereof provided, however, that these remedies are not exclusive but
cumulative to other remedies provided by law in the event of Lessee's default, and the exercise by Lessor of
one:or more rights and remedies shall not preclude the Lessor's exercise of additional or different remedies for
thesame or any other default by Lessee.
F. Failure to perform any of the terms; covenants or conditions of this Lease if said
failure is not cured within thirty (30) days after Lessee notifies Lessor of said failure shall constitute a default
by Lessor of this Lease. If the default cannot reasonably be cured in thirty (30) days after receipt of such
notice, Lessor shall not be in default if Lessor begins to cure within the thirty (30) day period and diligently
proceeds to cure to completion.
27. Right.of Entry.
A. In the event of an emergency which poses an immediate threat of harm or damage to
persons or property, Lessor may enter the Premises and take such actions as are required to protect persons or
property from such immediate threat of harm or damage, provided that promptly after such emergency entry
into the Premises (and in no event later than twenty-four(24)hours)Lessor gives telephonic and written notice
to Lessee of Lessor's.entry into the Preini'ses. In addition to Lessor's rights under the immediately preceding
sentence,Lessor shall have the right, upon forty-eight (48) hours prior telephonic notification to Lessee(which
notification shall specify the date and time at which Lessor seeks to enter the Premises), to enter the Premises
to determine whether or not Lessee is complying with this Lease and to serve; post or keep posted any notice.
Except in the event of an emergency, Lessor agrees that it shall not enter the Premises without a representative
GAYrnQ%Ku,Mgendu Prep£il,�WGU-Cingu(acdw
of Lessee being present, and Lessee agrees to make its representative promptly and readily available to
accompany Lessor on the date and at the time given in Lessor's telephonic notice. If Lessee fails to make its
representative available on the date and at the time given in Lessor's telephonic notice or at a mutually
agreeable time,then Lessor may enter the Premises accompanied by a peace officer.
B. Lessee shall install a lock box system on the Premises and give the City access to the
lock box in order to allow the City to inspect the Premises pursuant to Paragraph.A above.
28. Signs. Lessee shall not place, affix, maintain or permit any sign, advertisement, name,
insignia, logo, descriptive material or similar item (collectively "sign") on the Premises without the prior
written approval of Lessor. Any approved sign shall be maintained by Lessee in good condition at all times.
Lessor may remove any sign not approved by Lessor at Lessee's cost. The cost of removal shall be additional
rent.
29. Condernnation. If the whole of the Premises shall be taken by any public or quasi-public
authority under the power of eminent domain, then this Lease shall terminate. If any part of the Premises shall
be taken under the power of eminent domain, then this Lease shall terminate as to the part taken, as of the day
possession (of that part) is required for any public purpose, and on or before that day Lessee shall elect in
writing either to terminate this Lease or to continue in possession of the remainder of the.Premises provided,
however, that rent shall only be reduced in proportion to the amount of the Premises taken if Lessee is unable
to operate at the same level after the condemnation as before the condemnation. All damages awarded for any
taking shall belong to Lessor, whether such damages be awarded as compensation for diminution in value to
the leasehold or to the fee provided, however, that Lessor shall not be entitled to any portion of the award
made for loss of Lessee's business or relocation expenses.
30. Nuisance. Lessee shall not do or permit to be done in or on the Premises any act, which may
be an unreasonable nuisance, annoyance or inconvenience to Lessor, Lessor's tenants on or occupants of
adjoining property,or to the neighborhood.
31. Exculpation. Except as expressly provided herein,Lessor shall not be liable to Lessee for any
damages to Lessee's property from any cause. To the extent permitted by law, Lessee waives all claims
against Lessor for damage or injury to persons or property arising or alleged to have arisen from any cause
Cts-aa
GASmf%Kae6AXmda Prep Fi a MOU-Ongulandnr
AE {ACf;ENl .
whatsoever, except Lessor's sole negligence or willful misconduct or Lessor's breach of its obligations
hereunder.
32. Waiver of Rights. The failure or delay of either party to insist on strict enforcement of any
term, covenant, or condition herein shall not be deemed a waiver of any right or remedy that such party may
have and shall not be deemed a waiver of any subsequent or other breach of any term, covenant, or condition
herein. The receipt and acceptance by Lessor of delinquent rent shall not constitute a waiver of any other
default but shall only constitute a waiver of timely payment for the particular rent payment involved. Any
waiver by either party of any default or breach shall be in writing. Either party's consent to or approval of any
act by the other party requiring a party's consent or approval shall not be deemed to waive such party's consent
or approval of any subsequent act of the other party.
33. Partial Invalidity. If any term, covenant or condition of this Lease is held by a court of
competent jurisdiction to be invalid, void or unenforceable,the remainder of the provisions hereof shall remain
in full force and effect.
34. Successors in Interest. This Lease shall be binding on and inure to the benefit of the parties
and their successors, heirs, personal representatives, approved transferees and assignees, and all of the parties
hereto shall be jointly and severally liable hereunder.
M. Right to Re-Enter. Lessor acknowledges that Lessee's use of the Premises includes
proprietary trade secrets. Lessor shall have no right whatsoever to enter the Premises except as provided in
Paragraph 27.A. above, without Lessee's written consent which Lessee shall not unreasonably withhold.
Lessee shall peaceably deliver possession of the Premises to Lessor on theeffective date of termination or
expiration of this Lease. On giving notice of termination to Lessee, Lessor shall have the right to re-enter and
take possession of the Premises on the termination or expiration date without further notice of any kind and
without institution of summary or regular legal proceedings. Termination of the Lease and re-entry of the
Premises by Lessor shall in no way alter or diminish any obligation of Lessee under the Lease and shall not
constitute an acceptance or surrender. Lessee waives any and all right of redemption under any existing or
future.law, in the event of eviction from the Premises and in the event Lessor re-enters and takes possession.
Lessee agrees that should the manner and method used by Lessor in re-entering or taking possession after
ca �a3
GA41af Xi.%eAAgenda Prep Me MOU-Cingular.dnc
breach by Lessee gives Lessee a cause of action for damages or in forcible entry and detainer; a to a n
of damages to which Lessee shall be entitled due to the re-entering shall be One Dollar($1.00). Lessee agrees
that this Section may be filed in any such action and that when filed it shall be a stipulation by Lessee fixing
the total damages to which Lessee is entitled in such action.
36. Holding Over. If Lessee holds over and remains in possession of the Premises after the
expiration of the Lease, such holding over shall be construed as a tenancy from month to month on the same
terms, covenants, and conditions herein, except that monthly rent shall be one-twelfth (1/12) of one hundred
twenty-five percent (125%) of the annual rent then in effect. Nothing in this Section shall be construed as a
consent by Lessor to any holding over by Lessee.
37. Time. Time is of the essence in this Lease and every provision hereof.
38. Attorney's Fees. In any action or proceeding relating to this Lease, the prevailing party shall
be entitled to its costs, including reasonable attorney's fees and court costs.
39. Inteeration and Amendments. This Lease represents and constitutes the entire understanding
between the parties and supercedes all other agreements and communication between the parties, oral or
written, concerning the subject matter herein.. This Lease shall not be modified except in writing duly signed
by the parties and referring to this Lease.
40. Recordation. Concurrently with the execution of this Lease, Lessor shall execute before a
notary and deliver to Lessee for recording a "Memorandum of Lease" substantially in the form of Exhibit"C"
attached hereto and by this reference incorporated herein (the "Memorandum"). Lessee may record the
Memorandum and shall pay any fees or taxes applicable to or arising from said recordation. Upon expiration
or sooner termination of this Lease, Lessee.shall, at its sole cost, immediately record a Quitclaim Deed with
respect to its interest under this Lease.
41. Governing Law. This Lease shall be governed by and construed in accordance with the laws
of the State of California.
42. Captions. The various headings and numbers herein and the grouping of the terms hereof into
separate sections, paragraphs and clauses are for convenience only and shall not be considered a part hereof,
and shall have no effect on the construction or interpretation of this Lease.
Ca-Dq
GAYtaffWikAAgenda Prep FilexWOU-Cingulac&x,
ATTAiGHIMLbil
43. Abandoned Property. The vacating or abandonment of the Premises by Lessee shall include
but not be limited to the failure of Lessee to occupy the Premises for a continuous period of forty-five (45)
days or more while not paying rent: If Lessee abandons the Premises, title to any personal property belonging
to Lessee and left on the Premises forty-five (45).days after such abandonment shall be deemed to have been
transferred to Lessor. Lessor shall thereafter have the right to remove and to dispose of said property without
I iability to lessee or to any person claiming under Lessee, and shall have no duty to account therefore.
44. Compliance with the Law. Lessee shall comply with all laws, ordinances, rules and
regulations of all federal, state and local governmental authorities having jurisdiction over the Premises and
business thereon.
45. Quiet Enoyment. Lessor covenants that, if Lessee performs the terms, covenants and
conditions of this Lease,Lessee shall peaceably and quietly hold and enjoy the Premises.
46. Lessor's Representation of'Authority. Lessor represents that it has title to the Premises and
full authority to execute this Lease and to grant the easements and access to the Premises. Lessor further
represents that there are no undisclosed liens,judgments, impediments or exceptions of title on the Premises
that would affect this Lease.
47: Non-Interference Provision. Lessor will use its best efforts to provide Lessee with notice of
any applications received from any other communications companies wishing to utilize any part of Laguna
Lake Golf Course. Further, Lessor will use its best efforts to not lease property in Laguna Lake Golf Course to
other communication companies, nor to use Laguna Lake Golf Course for communications purposes, that
might interfere with Lessee's use of the Premises. In the event Lessor or any other communication company
on Laguna Lake Golf Course does, in fact, interfere with Lessee's use of the Premises, Lessor shall eliminate,
or cause to be eliminated, such interference within seventy-two (72) hours of written notice by Lessee. If such
interference is not eliminated in such time period,Lessee may exercise any right or remedy at law or in equity
to eliminate the interference or may terminate this Lease.
IN WITNESS WHEREOF, the parties have executed this Lease with all of the formalities required by
law as of the date first above written.
ea�26-
G\StaffWarMgenda Prep File�WfOU-Cingular.dlx
LESSOR: - LESSEE:
4TTACNMENT 1
City of San Luis Obispo
By By: - -
David F. Romero;Mayor
ATTEST:
By: _
Audrey Hooper,City Clerk
APPROVED AS TO FORM:
By.
Jona41n5 owell,City Attorney
�� rUW
TA HME I L'
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
T. I
All that real prropertylocated in the State of California County-of San Luis Obispo described as follows:
[Note:-7"helegal description will be prepared at-a later date prior to execution of the lease.I
ca ��
GAStaQMseW gmJu Prep FileA MOU-Cingulm.Jor
AWENT
TTA H
EXHIBIT_B
DESCRIPTION OF THE_PROJECT
[Note• The detailed proiect description will be prepared at a later date prior to execution of the lease.I
GAS,gfiWimMgmdu Prep Fit,>S6fOU-Cingutur.d.,
EXHIBIT C
EVIDENCE OF AGREEMENT-WITH-SPRINT
FOR SHARED FACILITIES.
(Note: The evidence of agreement with Sprint for shared facilities will be prepared at-a later dateprior to
execution of the lease.]
GARul)kKiseMRenrlu Prep File.M1OU-Cingulaeekrr